TMI BlogInspection, Search, Seizure and ArrestX X X X Extracts X X X X X X X X Extracts X X X X ..... n officer of CGST/SGST only upon a written authorization given by an officer of the rank of Joint Commissioner or above. A Joint Commissioner or an officer higher in rank can give such authorization only if he has reasons to believe that the person concerned has done one of the following: i. suppressed any transaction of supply; ii. suppressed stock of goods in hand; iii. claimed excess input tax credit; iv. contravened any provision of the CGST / SGST Act . to evade tax; v. a transporter or warehouse owner has kept goods which have escaped payment of tax or has kept his accounts or goods in a manner that is likely to cause evasion of tax. Q 4. What are the powers of the proper officer during the search? Ans. The officer authorised under to carry out inspection shall have the power to seal or break open the door of any premises or to break open any almirah, electronic devices, box, receptacle in which any goods, accounts, registers or documents of the person are suspected to be concealed, where access to such premises, almirah, electronic devices, box or receptacle is denied. ( Section 67(4) of the Act). Q 5. Whether the person from whose cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n authorization for search, he has to disclose the material on which his belief was formed. Reason to believe need not be recorded invariably in each case. However, it would be better if the materials / information etc. are recorded before issue of search warrant or before conducting search. Q 10. What is a Search Warrant and what are its contents? Ans. The written authority to conduct search is generally called search warrant. The competent authority to issue search warrant is an officer of the rank of Joint Commissioner or above. A search warrant must indicate the existence of a reasonable belief leading to the search. Search Warrant should contain the following details: i. the violation under the Act, ii. the premise to be searched, iii. the name and designation of the person authorized for search, iv. the name of the issuing officer with full designation along with his round seal, v. date and place of issue, vi. serial number of the search warrant, vii. period of validity i.e. a day or two days etc. Q 11. When do goods become liable to confiscation under the provisions of CGST/SGST Act? Ans. As per section 130 of SGST/ SGST Act , goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he search should be made in the presence of at least two independent witnesses of the locality. If no such inhabitants are available/willing, the inhabitants of any other locality should be asked to be witness to the search. The witnesses should be briefed about the purpose of the search. Before the start of the search proceedings, the team of officers conducting the search and the accompanying witnesses should offer themselves for their personal search to the person in-charge of the premises being searched. Similarly, after the completion of search all the officers and the witnesses should again offer themselves for their personal search. A Panchnama / Mahazar of the proceedings of the search should necessarily be prepared on the spot. A list of all goods, documents recovered and seized/detained should be prepared and annexed to the Panchnama/Mahazar. The Panchnama / Mahazar and the list of goods/ documents seized/detained should invariably be signed by the witnesses, the in-charge/ owner of the premises before whom the search is conducted and also by the officer(s) duly authorized for conducting the search. After the search is over, the search warrant duly executed shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained. Such goods and conveyance shall be released after payment of applicable tax or upon furnishing security of equivalent amount. Q 18. What is the distinction in law between Seizure and Detention ? Ans. Denial of access to the owner of the property or the person who possesses the property at a particular point of time by a legal order/notice is called detention. Seizure is taking over of actual possession of the goods by the department. Detention order is issued when it is suspected that the goods are liable to confiscation. Seizure can be made only on the reasonable belief which is arrived at after inquiry/investigation that the goods are liable to confiscation. Q 19. What are the safeguards provided in GST Act(s) in respect of Search or Seizure? Ans. Certain safeguards are provided in section 67 of CGST/ SGST Act in respect of the power of search or seizure. These are as follows: i. Seized goods or documents should not be retained beyond the period necessary for their examination; ii. Photocopies of the documents can be taken by the person from whose custody documents are seized; iii. For seized goods, if a notice is not issued within six m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the First Schedule to the Customs Tariff Act, 1975 (xii) Fireworks (xiii) Red Sander (xiv) Sandalwood (xv) All taxable goods falling within Chapters 1 to 24 of the First Schedule to the Customs Tariff Act, 1975 (xvi) All unclaimed/abandoned goods which are liable to rapid depreciation in value on account of fast change in technology or new models etc. (xvii) Any goods seized by the proper officer under section 67 of the said Act, which are to be provisionally released under section 67(6) of the said Act, but provisional release has not been taken by the concerned person within a period of one month from the date of execution of the bond for provisional release. ( Section 68(7) of the CGST Act, 2017 ) Q 22. Is there any special document required to be carried during transport of taxable goods? Ans. Under section 68 of CGST / SGST Act , a person in charge of a conveyance carrying any consignment of goods of value exceeding a specified amount may be required to carry a prescribed document as prescribed in the E way Bill Rules. Chapter XVI of CGST Rules contains provisions relating to documents required to be carried. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure, 1973 (2 of 1974) relating to arrest and the procedure thereof must be adhered to. It is therefore necessary that all field officers of CGST/SGST be fully familiar with the provisions of the Code of Criminal Procedure, 1973. One important provision to be taken note of is section 57 of Cr.P.C., 1973 which provides that a person arrested without warrant shall not be detained for a longer period than, under the circumstances of the case, is reasonable but this shall not exceed twenty-four hours (excluding the journey time from place of arrest to the Magistrate s court). Within this period, as provided under section 56 of Cr.PC. the person making the arrest shall send the person arrested without warrant before a Magistrate having jurisdiction in the case. In a landmark judgment in the case of D.K. Basu v. State of West Bengal reported in 1997 (1) SCC 416 = 1996 (12) TMI 350 - SUPREME COURT , the Hon ble Supreme Court has laid down specific guidelines required to be followed while making arrests. While this is in relation to police, it needs to be followed by all departments having power of arrest. These are as under: i. The police personnel carrying out the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epare such a panel for all Tehsils and Districts as well. viii. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record. ix. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. x. A police control room should be provided at all district and State headquarters where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. Q 27. What are the broad guidelines for arrest followed in CBIC? Ans. Decision to arrest needs to be taken on case-to- case basis considering various factors, such as, nature and gravity of offence, quantum of duty evaded or credit wrongfully availed, nature and quality of evidence, possibility of evidences being tampered with or witnesses being influenced, cooperation with the investigation, etc. Power to arrest has to be exercised after careful consideration of the facts of the case which may include: i. to ensure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... control of the person summoned. Q 32. What are the responsibilities of the person so summoned? Ans. A person who is issued summon is legally bound to attend either in person or by an authorized representative and he is bound to state the truth before the officer who has issued the summon upon any subject which is the subject matter of examination and to produce such documents and other things as may be required. Q 33. What can be the consequences of non- appearance to summons? Ans. The proceeding before the official who has issued summons is deemed to be a judicial proceeding. If a person does not appear on the date when summoned without any reasonable justification, he can be prosecuted under section 174 of the Indian Penal Code (IPC). If he absconds to avoid service of summons, he can be prosecuted under section 172 of the IPC and in case he does not produce the documents or electronic records required to be produced, he can be prosecuted under section 175 of the IPC. In case he gives false evidence, he can be prosecuted under section 193 of the IPC. In addition, if a person does not appear before a CGST/ SGST officer who has issued the summons, he is liable to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appearance given in the summons. No person should be made to wait for long hours before his statement is recorded except when it has been decided very consciously as a matter of strategy. (iv) Preferably, statements should be recorded during office hours; however, an exception could be made regarding time and place of recording statement having regard to the facts in the case. Q 36. Are there any class of officers who are required to assist CGST/SGST officers? Ans. Under section 72 of CGST / SGST Act , the following officers have been empowered and are required to assist CGST /SGST officers in the execution of CGST / SGST Act . The categories specified are as follows: i. Police; ii. Railways iii. Customs; iv. Officers of State/UT/ Central Government engaged in collection of GST; v. Officers of State/UT/ Central Government engaged in collection of land revenue; vi. All village officers; vii. Any other class of officers as may be notified by the Central/State Government. Q 37. Is there any prescribed format for arrest memo under the CGST Act, 2017? Ans. There is no prescribed format for arrest memo but an arrest memo mus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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